There is no shame anymore. And yet there still are obscenity trials. Absurd.

I'm finding this story now because I happened across an account to the trial in an article published last March at Reason.com: "Porn So Icky That It Can't Be Obscene" (by Jacob Sullum), describing the argument made at trial, which describes the argument made by Isaacs's lawyer:

"My intent is to be a shock artist in the movies I made," [Isaacs] testified, "to challenge the viewer in thinking about art differently... to think about things they'd never thought about before." Similarly, [his lawyer Roger] Diamond argued that the films have political value as a protest against the government's arbitrary limits on expression, illustrating the "reality that we may not have the total freedom the rest of the world thinks we have."

Sullum wrote:

I will be impressed if Isaacs, who faces a possible penalty of 20 years in prison, can pull off this feat of legal jujitsu, transforming the very qualities that make his movies objectionable into their redeeming value — especially since at least some of the jurors... found the evidence against him literally unwatchable. But if the jurors want to blame someone for making them sit through this assault on their sensibilities, they should not blame Isaacs. They should blame the Justice Department, which initiated the case during the Bush administration, and the Supreme Court, which established the absurdly subjective test they are now supposed to apply. Will they take seriously Isaacs' references to Marcel Duchamp, Robert Rauschenberg, Kiki Smith, and Piero Manzoni, or will they dismiss his artistic name dropping as a desperate attempt to give his masturbation aids a high-minded purpose?

But here's some up-to-date news from 2 days ago: Minutes before Isaacs was to turn himself in to the federal Bureau of Prisons, Isaacs go a call from his lawyer saying "don't go." The judge had approved his motion for bail pending appeal.

Isaacs told XBIZ that today's events were so surreal he had felt like he was in an episode of the "Twilight Zone" or a Quentin Tarantino movie....

"Last night, I was thinking it would be my last night of freedom," he said. "I really thought that this would be it; that I would be sleeping in prison the following night... and that would continue for a very long time."

We'll see what happens in the 9th Circuit Court of Appeals and — if we're lucky — the Supreme Court.

If you want to see obscenity watch Schindler's List coming on at 8:00. That it is a factual presentation doesn't make the Nazi crimes less obscene.

The Nazi Army may have been kinder to the Jewish families they exterminated quickly than to the Poles, and the many prisoners sent to Germany as slave labor to be worked to death and the Russian peasants they intentionally starved to death.

There is no shame anymore. And yet there still are obscenity trials. Absurd.

Sorry, Althouse, but this is a bullshit argument. The free speech clause does not wax and wane with the shame in our society. The free speech clause says the same thing now that it said in 1789. We don't have more freedom now, we have the same freedom.

Our right to speak freely is immutable. Whether our authorities respect our rights or not is simply a measure of whether we are in a republic or not. Nobody has the authority to lock up this citizen for speaking. And this is not because our society is shameless or obscene, but because we think it's up to God to judge our souls, not the government.

It's this punishment for a thought crime that is obscene. It is a blatant abuse of power. It is a group of citzens saying to a person, "I will tell you how to think."

It appears that they showed someone having sex with a dog. That is not freedom of speech, that is animal abuse.

Then convict him of animal abuse!

He was convicted under a blatantly unconstitutional statute that punishes him for his speech. If he kills somebody or tortures a puppy or pays somebody for prostitution, you can convict him for those crimes.

You just can't convict him for making an obscene movie, or writing an obscene book, or expressing an obscene thought.

"I concur in the Court's opinion and judgment but add a few words because of concurring opinions by several Justices who rely on their appraisal of the movie Lady Chatterley's Lover for holding that New York cannot constitutionally bar it. Unlike them, I have not seen the picture. My view is that stated by Mr. Justice Douglas, that prior censorship of moving pictures like prior censorship of newspapers and books violates the First and Fourteenth Amendments. If despite the Constitution, however, this Nation is to embark on the dangerous road of censorship, my belief is that this Court is about the most inappropriate Supreme Board of Censors that could be found. So far as I know, judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments--as to what movies are good or bad for local communities--which the concurring opinions appear to require. We are told that the only way we can decide whether a State or municipality can constitutionally bar movies is for this Court to view and appraise each movie on a case-by-case basis. Under these circumstances, every member of the Court must exercise his own judgment as to how bad a picture is, a judgment which is ultimately based at least in large part on his own standard of what is immoral. The end result of such decisions seems to me to be a purely personal determination by individual Justices as to whether a particular picture viewed is too bad to allow it to be seen by the public. Such an individualized determination cannot be guided by reasonably fixed and certain standards. Accordingly, neither States nor moving picture makers can possibly know in advance, with any fair degree of certainty, what can or cannot be done in the field of movie making and exhibiting. This uncertainty cannot easily be reconciled with the rule of law which our Constitution envisages."

So if I turn my camcorder on while toilet training my four-year-old (he's a bit late, the older boy finished earlier; it happens), and put the result on youtube, and there's a little poop on the rim, and Junior reaches his hand down, etc., who goes to jail, Junior or me?

The point of regulating human sexuality is not because we hate fun, or orgasms. The point of regulating human sexuality is to avoid the infanticides that follow. We outlaw prostitution, frown on adultery and disparage the orgy. Why? Because when human sexuality is free and easy, fathers will disappear, mothers will be alone, and babies will die.

I’m not sure the Supreme Court actually understands this. In fact, I’m not sure the Supreme Court thinks much about the ramifications of sex at all. Its opinions in this area are really bad, often knee-jerk and thoughtless.

Consider F.C.C. v. Pacifica Foundation. This is a case where the federal government is punishing people for saying bad words on the radio. The radio station was playing a tape of George Carlin, whose comedy routine was in regard to the “words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.”

The Supreme Court declared in Pacifica that Congress could punish people who say things about human sexuality. And the Court did this in spite of our free speech rights. Our Constitution specifically says, “Congress shall make no law…abridging the freedom of speech.”

George Carlin’s seven dirty words you can’t say on the public airwaves are “shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.” So we might ask the Supreme Court why it’s wrong to say those words on the radio, but it’s right to inject poison into a baby’s neck.

Notice the Supreme Court has amended away our free speech clause, while finding a new right to abortion that is not in our Constitution at all. So both Pacifica and Roe are similar in that they are non-textual make believe rules that have nothing to do with the actual words in our Constitution. And both opinions are similar in that they may be read as controls on human sexuality.

The Supreme Court--those uptight people in the ivory tower--do not want us saying dirty words on the radio, nor do they want us reproducing willy-nilly. They will put a stop to that!

Once you find a right to terminate a baby, it’s really kind of bizarre to object to what a comedian says on the radio. Why are you trying to regulate obscene sexual speech, anyway? It’s not as if an orgy as imminent. He’s just saying a bad word. It’s not actual sex. No baby is being made.

But even if Carlin’s seven dirty words excites the audience and we have a massive public orgy in the auditorium, so what? If abortion is a right thing to do--as the Supreme Court insists--what do you care if people have sex? Why would you outlaw the fun orgasmic stuff, when you’ve already found a constitutional right to kill any baby we accidentally create?

Justice Stevens writes, “the Commission’s definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities.” Stevens has no idea why he’s regulating sex, or why he’s offended by it. There’s no thought behind his opinion. He’s just repressing for the sake of repression, almost out of habit.

According to the Supreme Court, there is a “patently offensive” exception to our free speech clause. You can be fined, or go to jail, if the authorities are offended by what you say. And by “authorities” we mean the uptight people in the black robes. Apparently the Supreme Court just doesn’t like sex very much.

Indeed, the Supreme Court has gone way beyond a repressive desire to stop sex. The Court is determined to regulate and outlaw words about sex. Joking about sex on the radio is now illegal. Words are “patently offensive.” But collapsing a baby’s skull? That’s a right thing to do.

I feel like Brandenburg v. Ohio should be used in all free speech cases, to measure whatever physical harms the speech is supposed to cause.

Under Brandenburg, the harms must be

a) intended by the speakerb) imminentc) likely to occur

Thus when feminists say that pornography causes rape, it would fail the Brandenburg standard. When you make a porn film, you don't intend for a woman to be raped, nor is a rape imminent, nor is it likely to occur.

Or if you argue that porn leads to sexually transmitted disease, or dead babies, or whathaveyou, it also fails the Brandenburg test. Indeed, any book or movie would fail that test.

But in cases like perjury or fraud, we can punish people, even as their crime is made up of speech.

In the case of perjury, you...

a) intend for an innocent person to be jailed or fined, or a guilty person to be freed

b) this harm is imminent

c) and it's likely to occur

This analysis is similar with fraud. You're using words to steal money. You intend to steal money, the theft is imminent, and it's likely to occur.

I love Brandenburg. It is the high point of Supreme Court free speech law. And it's unanimous.

They waited for him to die before they wrote Roe v. Wade. And I firmly believe that if Harry Blackmun had circulated his arbitrary memo while Black was on the Court, Black might have strangled him. (Like he once tried to strangle Felix Frankfurter!) The Constitution was of supreme importance to Black. He was not a partisan hack, he was not glib and he was not flippant.

The retirement and deaths of Earl Warren, Hugo Black, and John Marshall Harlan were a disaster for the Supreme Court. In particular the death of Black was a severe loss. All the liberals looked up to him. I do not believe they would have gone off the rails like they did if Black was there. His dissent would have been pointed and brutal.

"Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge... Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are "more important interests." The contrary notion is, in my judgment, court-made not Constitution-made."